Are divorce attorneys doing hurt?

While the Hippocratic oath is no longer required for doctors, we often hear the principle ascribed to this ancient Greek oath for healers, “do no harm first”. The translation is actually closer to “I will not harm or injustice you” but the feeling is clear. When trying to help someone, your first commitment is not to make things worse.

Today, I attended the third in a series of public forums held by the Child Support Policy Task Force, giving people the opportunity to comment on what was going on in the 2018 Child Support Policy in Massachusetts should change. What impressed me about the testimony is that very few people have commented on the guidelines themselves. Rather, they focused on the perceived impact of the guidelines and the courts on family conflicts. Almost everywhere, commentators suggested that changes were necessary because the court experience impoverished families, exacerbated conflict, and injured children.

Whether asking for a lower or higher formula for those who speak up about prejudice in the system or income inequalities, or even when they share the dangers of domestic and partner violence; Each commenter seemed to agree on one thing: the family court system should help more.

Granted, this is not a random selection of court customers. These are people who felt they were strong enough to spend their afternoon in a public hearing (this isn’t a comfortable or fun afternoon even online). There is a certain self-selection of people looking for changes in the system because the system failed them or someone they knew in some way. Even if I recognize this tendency in the selection process, I ask myself: are the court, the bar association and the task force doing enough to reduce conflict? Can the Child Support Guidelines achieve their goal without causing harm?

I am not sure of the answers to these questions, and much of what has been discussed in public today went well beyond the task force’s power to speak on changes to a formula or on adding definitions to judicial guidance. The task force is bound by legal and federal requirements, and the court is limited in its creativity for resolution by law, jurisdiction, and constitution. And the decision to change one thing in the formula inevitably increases the burden on one side. There will always be someone who is dissatisfied with the outcome.

Unless … we ask lawyers

Who are often the gatekeepers of the judicial process

to “firstly do no harm.”

The problem with the judicial system and the rules is not one or the other choice in setting the rules. The problem is, there is always a good and just exception to every rule. No matter how well the court makes the rules, no matter how well the task force drafts the guidelines, they will always be one size fits all solutions that are glued across an infinite variety in actual families. The playing field will always be a hammer no matter how many problems start as nails.


The 3 Fs are not your only option for resolving conflicts.

♬ Original sound – Justin Kelsey – Mediator ☮️

Realizing that solicitors have many other tools besides litigation as problem solvers is key to better problem solving, finding solutions that are unique and respectful for more families. Legal training should include interest-based negotiation training, mediation training and collaborative legal training. By the time law schools catch up, you (the reader) can support that need by reaching out and working with lawyers who have chosen to receive training in these additional disciplines to provide more tools who help their clients.

It’s time to expect more from lawyers than just “fight” on behalf of their clients. An assessment of a customer’s case should encompass the whole picture. Customers should be given an opportunity to understand that even if they win, litigation often increases the extent of their conflict. Even customers who have been abused or whose power has been removed deserve to be aware of all of the options and decisions on how to proceed. Educating them about problem solving is empowering. Being a champion to someone doesn’t teach them anything about how to defend themselves or stand up for themselves in the future.

If we are to participate in people’s most intimate family conflicts, we must use all the tools at our disposal to reduce conflict, especially before we take action that would exacerbate it. I wonder how many of the stories I’ve heard today would be different if that approach were taken first. Would they praise their attorneys or agents instead of complaining about them? That should at least be our future goal. Regardless of what changes the task force recommends, there will be opportunities for fighting in the future, and each one offers an opportunity to increase or decrease the conflict. What will you do?

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